Citation Nr: 0603449
Decision Date: 02/07/06 Archive Date: 02/15/06
DOCKET NO. 02-14 342 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in St.
Petersburg, Florida
THE ISSUE
Whether new and material evidence has been received to reopen
the claim for an earlier effective date for the grant of
service connection for Meniere's disease with endolymphatic
hydrops, bilateral defective hearing, and tinnitus.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
T. Francesca Craft, Associate Counsel
INTRODUCTION
The veteran served on active duty from January 1941 to
January 1947.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from an April 2002 rating decision by the
Department of Veterans Affairs (VA) regional office (RO) in
St. Petersburg, Florida, which concluded that new and
material evidence had not been received to reopen the claim
for an earlier effective date for the grant of service
connection for Meniere's disease with endolymphatic hydrops,
bilateral defective hearing, and tinnitus.
The Board initially reviewed the appeal in March 2004, at
which time, the Board remanded the matter to the RO via the
Appeals Management Center (AMC) to address some procedural
matters. A review of the claims file indicates that these
matters have been addressed, enabling the Board to proceed
with its review. See Stegall v. West, 11 Vet. App. 268, 271
(1998).
FINDINGS OF FACT
1. The veteran has been adequately notified of all pertinent
laws and regulations and of the evidence necessary to
establish his claim; all reasonable development necessary for
the disposition of the appeal of this claim has been
completed.
2. On September 21, 1995, the RO received by facsimile
transmission, an application to reopen the claim for service
connection for hearing loss on the basis of new and material
evidence, and in June 1996, the RO granted service connection
for Meniere's disease with endolymphatic hydrops, bilateral
defective hearing and tinnitus on appeal, and assigned an
initial 100 percent disability evaluation effective September
21, 1995, the date of receipt of the claim.
3. The veteran appealed the June 1996 rating decision to the
Board; the Board in October 2000 denied the veteran's appeal
for an earlier effective date for service connection for
Ménière's disease with endolymphatic hydrops, bilateral
defective hearing, and tinnitus, prior to September 21, 1995,
and the veteran did not appeal the Board's decision.
4. In March 2001, the veteran submitted an application to
reopen a claim for an effective date for the grant of service
connection for Meniere's disease with endolymphatic hydrops,
bilateral defective hearing and tinnitus, prior to
September 21, 1995.
5. The evidence received since the October 2000 Board
decision pertinent to the claim for an earlier effective date
for grant of service connection for Meniere's disease does
not bear directly and substantially on the specific matter
under consideration and is cumulative and redundant in part;
it is not by itself or in combination with other evidence, so
significant that it must be considered in order to finally
decide the merits of the claim.
CONCLUSIONS OF LAW
1. The October 2000 Board decision that denied an effective
date for the grant of service connection for Meniere's
disease with endolymphatic hydrops, bilateral defective
hearing, and tinnitus, prior to September 21, 1995, is final.
38 U.S.C.A. § 7104(b) (West 1991); 38 C.F.R. § 20.1100
(2000).
2. Evidence received since the October 2000 Board decision
denying an effective date for the grant of service connection
for Meniere's disease with endolymphatic hydrops, bilateral
defective hearing, and tinnitus, prior to September 21, 1995,
is not new and material; accordingly, the claim for an
earlier effective date is not reopened. 38 U.S.C.A. §§ 5108,
7105 (West 2002); 38 C.F.R. § 3.156 (2001).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Veterans Claims Assistance Act of 2000 (VCAA)
The VCAA redefines the obligations of VA with respect to the
duty to assist and includes an enhanced duty to notify a
claimant as to the information and evidence necessary to
substantiate a claim for VA benefits.
The Board finds that the RO has obtained or made reasonable
efforts to obtain all records or other evidence that might be
relevant to the appellant's claim, and the appellant has not
identified any additional records or other evidence that has
not been obtained pertaining to the assignment of an
effective date for the grant of service connection for
Meniere's disease with endolymphatic hydrops, bilateral
defective hearing, and tinnitus.
The Board further notes that the enactment of the VCAA has no
material effect on adjudication of this claim for an earlier
effective date. The law, not the evidence, controls the
outcome of this appeal. Sabonis, supra. In Dela Cruz v.
Principi, 15 Vet. App. 143 (2001), the United States Court of
Appeals for Veterans Claims (Court) held that the enactment
of the VCAA does not affect matters on appeal when the
question is one limited to statutory interpretation.
Moreover, under 38 U.S.C. § 5103(a), the Department of
Veterans Affairs (VA) is not required to provide notice of
the information and evidence necessary to substantiate a
claim where that claim cannot be substantiated because there
is no legal basis for the claim or because undisputed facts
render the claimant ineligible for the claimed benefit.
VAOPGCPREC 2-2004. Under 38 U.S.C. § 5103A, VA is not
required to assist a claimant in developing evidence to
substantiate a claim where there is no reasonable possibility
that such aid could substantiate the claim because there is
no legal basis for the claim or because undisputed facts
render the claimant ineligible for the claimed benefit. Id.
Law and Regulations
Following notification of an initial review and adverse
determination by the RO, a notice of disagreement must be
filed within one year from the date of notification thereof;
otherwise, the determination becomes final and is not subject
to revision except on the receipt of new and material
evidence. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R.
§ 3.104(a) (2003); Manio v. Derwinski, 1 Vet. App. 140, 145
(1991).
In Evans v. Brown, 9 Vet. App. 273, 285 (1996), the Court
held that in order to reopen a previously and finally
disallowed claim there must be new and material evidence
presented or secured since the time that the claim was
finally disallowed on any basis, not only since the time that
the claim was last disallowed on the merits.
If new and material evidence has been received with respect
to a claim, which has become final, then the claim is
reopened and decided on a de novo basis. 38 U.S.C.A. § 5108
(West 2002).
New and material evidence means evidence not previously
submitted to agency decision makers which bears directly and
substantially on the specific matter under consideration,
which is neither cumulative nor redundant and which is, by
itself or in combination with other evidence, so significant
that it must be considered in order to fairly decide the
merits of the claim. 38 C.F.R. § 3.156(a) (2001).
The effective date of an evaluation and award of compensation
on an original claim for compensation will be the day
following separation from active duty service or the date
entitlement arose if claim is received within 1 year after
separation from service; otherwise, date of receipt of claim
or the date entitlement arose, whichever is later. 38
U.S.C.A. § 5110(a) (West 2002); 38 C.F.R. § 3.400(b)(2)
(2005).
The effective date of an evaluation and award of compensation
after a final disallowance will be the date of receipt of the
claim or the date entitlement arose, whichever is later,
except as otherwise provided. 38 U.S.C.A. § 5110(a); 38
C.F.R. § 3.400(q)(1)(ii).
Analysis
The Board has thoroughly reviewed all the evidence in the
veteran's claims folder, which includes: his service medical
records, service personnel records, his contentions, as
presented in hearing testimony, written statements, and
argument, rating decisions, Board decisions, VA records for
treatment, VA examination reports, and various private
medical records/reports. Although the Board has an
obligation to provide reasons and bases supporting this
decision, there is no need to discuss, in detail, the
extensive evidence submitted by the veteran or on his behalf.
See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000)
(the Board must review the entire record, but does not have
to discuss each piece of evidence). The Board will summarize
the relevant evidence where appropriate, and the Board's
analysis below will focus specifically on what the evidence
shows, or fails to show, on the claim. See Timberlake v.
Gober, 14 Vet. App. 122 (2000) (the law requires only that
the Board address its reasons for rejecting evidence
favorable to the claimant).
It is essential to note at the outset that the veteran does
not dispute when VA received his original claim for service
connection or when VA received subsequent applications to
reopen his claims for service connection.
The procedural history of this matter is quite lengthy. The
initial rating decision pertaining to the veteran's service-
connected Meniere's disease with endolymphatic hydrops,
bilateral defective hearing, and tinnitus occurred in March
1967. Within that rating decision, the RO denied service
connection for bilateral hearing loss, as the veteran's
hearing was found to be within normal limits at the time of a
February 1967 VA audiological examination. The veteran did
not appeal within one year of receiving notice of that
decision, and thus, that decision became final. See
38 U.S.C.A. § 7105(b)(1),(c) (West 1991); 38 C.F.R. §§
20.302, 20.1103 (1999).
Thereafter, the veteran attempted to reopen his claim and a
January 1981 rating decision continued the previous denial of
service connection for hearing loss; the RO did not consider
service connection for Meniere's disease as part of his
claim. The veteran appealed the decision and a March 1982
Board decision denied service connection for hearing loss.
That decision is final. See 38 U.S.C.A. § 4004(b) (1982); 38
C.F.R. § 19.104 (1981).
Subsequently, the veteran attempted to reopen his claim and
in a February 1984 rating decision, the RO denied service
connection for both hearing loss and Meniere's disease. The
veteran appealed the decision and in December 1986, the Board
denied service connection for hearing loss and Meniere's
disease. That decision is likewise final. 38 U.S.C.A.
§ 4004(b) (1982); 38 C.F.R. § 19.104 (1983).
On September 21, 1995, the RO received by facsimile
transmission, another application to reopen the claim for
service connection for hearing loss on the basis of new and
material evidence. By a June 1996 rating decision, the RO
granted service connection for Meniere's disease with
endolymphatic hydrops, bilateral defective hearing and
tinnitus on appeal, assigning an initial 100 percent
disability evaluation effective September 21, 1995, the date
of receipt of the claim. The veteran moved for
reconsideration of the Board's decision of December 3, 1996,
which the Board denied in June 1997. The veteran also
appealed the June 1996 rating decision, expressing
disagreement with the effective date of service connection
and asserting clear and unmistakable error (CUE) in the
Board's decisions of December 3, 1986 and the RO's decision
of January 22, 1981. In two October 2000 decisions, the
Board addressed the allegations of CUE and an earlier
effective date separately; the Board denied both claims. The
veteran did not appeal either decision and both are final.
38 U.S.C.A. § 7104(b) (West 1991); 38 C.F.R. § 20.1100
(2000).
At the time of the June 1996 rating decision the pertinent
evidence of record was a facsimile transmission received by
the RO on September 21, 1995 and a letter received by former
Senator Jesse Helms dated in October 1995. The September 21,
1995 fax cover sheet provided the appellant's name, Social
Security number, and VA claim number, and stated in pertinent
part, "I have obtained additional significant information
regarding my hearing loss that I want to present to the
Appeals Board...Please advise me how to proceed with this
matter as soon as possible." The letter from Senator Helms
had a facsimile transmission from the appellant attached.
The facsimile transmission, also dated in October 1995,
states that the Fayetteville VA Hospital told the veteran to
contact the VA Regional Hospital to reopen his claim. It
also states that he faxed the RO on September 21st and again
on October 10th, without receiving a response.
Since the June 1996 rating decision and after his application
to reopen his claim for an earlier effective date in March
2001, the following evidence was associated with the claims
file: travel Board testimony from June 2003, numerous
letters from the veteran, a hospital summary dated in
September 1980, ENT (ears, nose, & throat) outpatient notes
from June 1981, a letter from VA's New York Harbor Health
Care System, and VA outpatient notes from July 2001. A
review of the evidence indicates that some items are new, but
none of the evidence is material to the issue of the
effective date for Meniere's disease with endolymphatic
hydrops, bilateral defective hearing, and tinnitus. In the
veteran's numerous letters, he asserts that in 1980, he sent
a carbon copy of a hospital summary from St. Albans Naval
Hospital to the RO. The summary, he contends, is dated
before he left active service and shows that he complained of
vertigo a few days prior to his discharge. He also asserts
that he submitted a summary from Dr. H.S. and several other
documents. He states that the RO lost these items and they
were not considered by the Board. The veteran made the same
assertions when he testified before the Board. The effective
date of an evaluation and award of compensation after a final
disallowance will be the date of receipt of the claim or the
date entitlement arose, whichever is later, except as
otherwise provided. 38 U.S.C.A. § 5110(a); 38 C.F.R.
§ 3.400(q)(1)(ii). The hospital summary, which indicates the
veteran was admitted for severe vertigo in September 1980, is
not relevant to the assignment of an effective date for
service connection because it has no impact on when the
veteran's claim to reopen was received. It is accepted that
his disability is of service origin. Likewise, the VA
outpatient notes from 1981 and 2001, and the letter from New
York Harbor Health Care System are not pertinent since they
have no bearing on the date the veteran's claim to reopen
service connection was received. The June 1996 decision
assigning the effective date in question is final as a matter
of law. The effective date cannot be earlier than September
21, 1995, when the current application to reopen the
assignment of an effective date for service connection of
Meniere's disease with endolymphatic hydrops, bilateral
defective hearing, and tinnitus was received; the additional
evidence in support of that claim was not received until
March 2001 or later.
The law, not the evidence, is dispositive of the outcome of
this case. As a matter of law, there is no entitlement to an
effective date prior to September 21, 1995, for the grant of
service connection for Meniere's disease with endolymphatic
hydrops, bilateral defective hearing, and tinnitus. Thus,
the claim for an earlier effective date is not reopened and
the appeal must be denied. Sabonis v. Brown, 6 Vet. App. 426
(1994).
ORDER
New and material evidence has not been received to reopen the
claim for an effective date for the grant of service
connection for Meniere's disease with endolymphatic hydrops,
bilateral defective hearing, and tinnitus prior to
September 21, 1995; the appeal is denied.
____________________________________________
BARBARA B. COPELAND
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs